[1.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") has been preferred by the appellant herein original plaintiff challenging the impugned judgment and decree dated 10.08.1987 passed by the learned Appellate Court learned District Judge, Rajkot in Regular Civil Appeal No. 145 of 1982 by which the learned Appellate Court has allowed the said Appeal preferred by the respondent herein original defendant Gujarat State Road Transport Corporation (hereinafter referred to as "GSRTC") and has quashed and set aside the judgment and decree dated 20.04.1982 passed by the learned trial Court – learned 2nd Extra Assistant Judge, Rajkot, Camp at Gondal in Regular Civil Suit No.58 of 1979 decreeing the suit and declaring that the order of dismissal dated 03.11.1976 is illegal, null and void and granting the declaration that the plaintiff continues to be in service, however, with 25% back wages only. [2.0] Facts leading to the present Second Appeal in nutshell are as under:
[2.1] That the appellant herein original plaintiff was serving as a conductor with the respondent herein original defendant GSRTC. That on 02.03.1973, he was on duty as conductor on Chotila Gondal route. The checking party checked the bus of the plaintiff at Piyava bus stand and it was found that all the passengers were traveling without tickets though they had paid the fare to the plaintiff. That the statement of the passengers etc. were recorded by the checking party. The report was sent to the Divisional Controller, Rajkot about the incident. A departmental inquiry was initiated against the plaintiff for committing the misconduct of not issuing the tickets though the fare was collected from 15 passengers. That on conclusion of the inquiry and after giving full opportunity, the Inquiry Officer held that the charge of not issuing the tickets to 15 passengers though the fare was collected came to be proved and therefore, the charge of misappropriation of amount of fare came to be held to be proved. That thereafter, after giving showcause notice to showcause why he should not be dismissed from service, by order dated 03.11.1976 the Disciplinary Authority passed an order of dismissal against the appellant original plaintiff. That being aggrieved and dissatisfied with the order of dismissal passed by the Disciplinary Authority, the plaintiff preferred first and second appeals as provided under the Disciplinary Appeal Rules. That both the Appellate Authorities dismissed the said appeals. That thereafter being aggrieved and dissatisfied with the order of dismissal, the plaintiff preferred Regular Civil Suit No.58 of 1979 before the Civil Court, at Gondal. It was the case on behalf of the plaintiff that the order passed by the Disciplinary Authority dismissing the plaintiff is in breach of Article 311 of the Constitution of India. It was also submitted that even the finding given by the Disciplinary Authority holding the plaintiff guilty for the misconduct of dishonesty and misappropriation is vague. It was submitted that though the plaintiff has not admitted the charge of misconduct still the department has held assuming that he has admitted the same. Therefore, the departmental proceedings are vitiated. It was submitted that even the witnesses are not examined. Therefore, it was requested to decree the suit.
[2.2] The suit was resisted by the defendant by filing the written statement at Exh.9. It was submitted that the plaintiff had committed the misconduct by not issuing the tickets to the passengers after collecting the fare and had misappropriated the amounts so collected by him for his personal use. It was submitted that the inquiry was initiated and conducted against the plaintiff in accordance with law and after following due procedure as required and thereafter Disciplinary Authority has passed the order of dismissal after considering the report submitted by the Inquiry Officer that the plaintiff has committed the misconduct of misappropriation by not issuing the tickets though the fare was collected. It was further submitted that Article 311 of the Constitution of India would not be applicable. It was denied that the inquiry was held in breach of the principles of natural justice. It was further submitted that as such the Civil Court has no jurisdiction to entertain the suit and grant the reliefs which are prayed.
[2.3] That the learned trial Court framed the issues at Exh.13. That both the sides led the evidence, documentary as well as oral and thereafter the learned trial Court by judgment and decree dated 20.04.1982 decreed the suit by holding the order of dismissal dated 03.11.1976 confirmed by two appellate Authorities is against the principles of natural justice in as much as the learned trial Court also held that the plaintiff conductor gave reasonable cause for not issuing the tickets and the case on behalf of the plaintiff conductor that as such he was in process of issuing the tickets while the bus was in motion. Consequently, the learned trial Court declared the order of dismissal confirmed by the appellate Authorities as null and void and granting declaration that the plaintiff is continued in service, however, granted back wages of 25% only.
[2.4] Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court in Regular Civil Suit No.58 of 1979, the respondent herein – original defendant preferred Regular Civil Appeal No.145 of 1982 before the learned District Court, Rajkot and after framing the points for determination and on reappreciation of evidence, the learned Appellate Court has allowed the said Appeal by quashing and setting aside the judgment and decree passed by the learned trial Court by holding that the inquiry was conducted in accordance with law and after following due procedure as required and even the punishment is awarded by the competent authority. The learned Appellate Court also held on appreciation of evidence that the order of dismissal was not in breach of principles of natural justice as held by the learned trial Court. The learned Appellate Court has also held that on the proved misconduct the order of punishment of dismissal cannot be said to be excessive and/or harsh.
[2.5] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Appellate Court in allowing the Appeal preferred by the respondent herein – original defendant and quashing and setting aside the judgment and decree passed by the learned trial Court, the appellant herein – original plaintiff has preferred the present Second Appeal under Section 100 of the CPC.
[2.6] At the outset it is required to be noted that while admitting the present Second Appeal, the following substantial questions of law have been framed.
1. Does the nonoffering of witnesses whose statements were recorded and relied upon in the inquiry proceeding for cross examination of the delinquent amount to violation of principles of natural justice?
2. Has the default card of the delinquent on record without showing it to him weighed with the disciplinary authority in imposing the extreme penalty ? If yes, would it amount to contravention of principles of natural justice?
Therefore, as such this Court is required to consider substantial question of law only.
[3.0] Shri M.D. Rana, learned advocate appearing on behalf of the appellant herein – original plaintiff has vehemently submitted that the learned Appellate Court has materially erred in allowing the Appeal preferred by the defendant and quashing and setting aside the judgment and decree passed by the learned trial Court. It is submitted that the finding given by the learned trial Court that the disciplinary proceedings as well as the final order of dismissal passed by the Disciplinary Authority are in breach of principles of natural justice were on appreciation of evidence which was not required to be interfered by the learned Appellate Court. It is submitted that as the Inquiry Officer specifically relied upon the statement of the passengers with respect to not issuing the tickets though the fare was collected, no opportunity was given to the plaintiff to crossexamine those passengers and therefore, the finding given by the Inquiry Officer holding the plaintiff guilty for the misconduct of not issuing the tickets though the fare was collected is vitiated and the same is in breach of principles of natural justice.
[3.1] It is further submitted that the learned Appellate Court has not properly appreciated the fact that in fact the plaintiff had not committed any misconduct as alleged as, as such the plaintiff was in process of issuing the tickets while the bus was in motion. It is submitted that aforesaid was rightly appreciated by the learned trial Court in giving the finding that it was not the intention of the plaintiff not to issue the tickets at all and/or to misappropriate the said amount.
[3.2] It is further submitted that the learned Appellate Court has materially erred in observing and/or holding that even if the passengers are not examined and / or the opportunity to crossexamine those passengers was not given to the plaintiff, the same is not vitiated as no prejudice has been caused to the appellant is absolutely illegal and against the settled proposition of law.
[3.3] It is further submitted that even the default card which was relied upon by the Disciplinary Authority while imposing the punishment, the plaintiff was not shown the same and the Disciplinary Authority imposed the extreme punishment of dismissal relying upon the said default card. Therefore, it is submitted that order of dismissal passed by the Disciplinary Authority is in breach of principles of natural justice, which was rightly set aside by the learned trial Court. In support of his above submission, Shri Rana, learned advocate appearing on behalf of the appellant has heavily relied upon the observations of this Court in Letters Patent Appeal No.83 of 1975.
Making above submissions, it is requested to allow the present Second Appeal.
[4.0] Present Second Appeal is opposed by Shri Pranav Desai, learned advocate appearing on behalf of the GSRTC. It is submitted that as such no illegality has been committed by the learned Appellate Court in allowing the Appeal and quashing and setting aside the judgment and decree passed by the learned trial Court.
[4.1] It is submitted by Shri Desai, learned advocate appearing on behalf of the GSRTC – employer that as such the plaintiff during the course of the inquiry never demanded and/or requested to examine any witness/passengers whose statements were considered by the Inquiry Officer and therefore, it is not open for the plaintiff to make the grievance thereafter.
[4.2] It is further submitted that as such even in appeals, the plaintiff never questioned the legality and validity of the inquiry and/or inquiry report and he as such accepted the findings recorded by the Inquiry Officer and requested to take the lenient view and to give one more opportunity and to pardon him. It is submitted that in the facts and circumstances of the case, when the charge of committing misconduct of misappropriation of the amount by not issuing the tickets though the fare was collected has been proved, it cannot be said that the Disciplinary Authority had committed any error and/or illegality in imposing the punishment of dismissal. It is submitted that as such the plaintiff was within the knowledge of the default card and therefore, no illegality has been committed by the Disciplinary Authority in relying upon the default card while imposing the punishment of dismissal. It is submitted that even otherwise and even in absence of default card also, on the proved misconduct, the order of dismissal is neither excessive nor disproportionate to the misconduct proved. Therefore, it is requested to dismiss the present Second Appeal.
[5.0] Heard learned advocates appearing on behalf of respective parties at length and perused the impugned judgment and order passed by both the Courts below and the entire evidence from Record & Proceedings received from the learned trial Court. At the outset it is required to be noted that while admitting the present Second Appeal, the learned single Judge has framed the aforesaid two substantial questions of law referred to herein above and therefore, this being Second Appeal under Section 100 of the CPC, this Court is required to consider the aforesaid two substantial questions of law unless the further prayer is made to recast and/or reframe the substantial questions of law.
[6.0] The main contention on behalf of the appellant herein – original plaintiff is that as no opportunity was given to the plaintiff to crossexamine the passengers whose statements were relied upon by the Inquiry Officer holding that the plaintiff has committed the misconduct of not issuing the tickets though the fare was collected and therefore, the finding and the inquiry report is against the principles of natural justice. It is also the case on behalf of the appellant herein – original plaintiff that as while imposing the punishment of dismissal, the Disciplinary Authority relied upon the default card which was not shown to the plaintiff and therefore, the order of dismissal is in breach of principles of natural justice.
[6.1] However, on considering the record it appears that the plaintiff during the course of inquiry never asked for examining and/or crossexamining any passenger whose statements were relied upon by the Inquiry Officer. It is required to be noted that the statements of the passengers submitting that they paid the fare but the tickets were not issued was never disputed by the plaintiff. It is also required to be noted at this stage that even it was found that the plaintiff had already collected fare from all the 15 passengers and at the time of raid after the bus left the station, cash of fare of 15 passengers was found more. The Disciplinary Authority has also disbelieved the defence of the plaintiff that he was in the process of issuing tickets to 15 passengers. It is an admitted position under the Rules the conductor was required to issue the tickets before the bus leaves the bus stop. It is also required to be noted at this stage that during the appeals before the Appellate Authorities, the plaintiff has never challenged the legality and validity of the inquiry and/or inquiry report and/or findings of the Inquiry Officer and his only contention before the Appellate Authorities was to take a lenient view and to pardon him and to give one another opportunity and not to impose the punishment of dismissal. Therefore, as such the plaintiff accepted the finding given by the Inquiry Officer holding the plaintiff guilty for the misconduct and misappropriation by not issuing the tickets to 15 passengers though the fare was collected. Therefore, it is not open for the plaintiff now to challenge such a finding before the Civil Court. It is required to be noted that as such the Civil Court is not sitting as an Appellate Authority against the order of Disciplinary Authority. Under the circumstances, the trial Court has materially erred in holding the finding given by the Inquiry Officer and/or the order of dismissal in breach of principles of natural justice, which is rightly set aside by the Appellate Court.
[6.2] Now, so far as the contention on behalf of the appellant that as the Disciplinary Authority while imposing punishment of dismissal relied upon the default card which was not shown to the plaintiff and therefore, the order of dismissal is in breach of principles of natural justice is concerned, it is required to be noted that no such grievance was made by the plaintiff before the Appellate Authorities. Even otherwise it is required to be noted that as such the default card is always with the plaintiff showing his past conduct. Therefore, as such the plaintiff is aware of what is stated in the default card. Therefore, as such the Disciplinary Authority has not committed any error and/or illegality and in relying upon the default card. Even otherwise and even in absence of the default card, considering the fact that the charge of committing the misconduct of misappropriation by not issuing the tickets to 15 passengers though the fare was collected has been proved, it is sufficient to impose the punishment / penalty of dismissal.
[6.3] In the case of Uttar Pradesh State Road Transport Corporation vs. Nanhel Lal Kushwaha reported in (2009) 8 SCC 772 in the similar set of facts and circumstances of the case when charge against the Conductor for collecting fare and not issuing the tickets came to be proved in departmental inquiry and when the order of dismissal was passed and Labour Court in exercise of powers under Section 11 A of the Industrial Disputes Act interfered with the order of dismissal on the ground that it is disproportionate, the Hon'ble Supreme Court set aside the order passed by the Labour Court confirmed by the High Court and restored the order of punishment of order of dismissal imposed by the employer. It is to be noted that under Section 11 A of the Industrial Disputes Act, the Labour Court has jurisdiction to interfere with quantum of punishment awarded by the employer, still the Hon'ble Supreme Court has held that ordinarily, discretion exercised by employer should not be interfered with. It is to be noted that in the present case as stated above as such Civil Court is not vested with such a jurisdiction like Section 11 A of the Industrial Disputes Act vested in the Labour Court / Industrial Tribunal/ Court. Even in the said decision, thought it was submitted on behalf of the workman that in the meantime the employee has already retired and therefore, the Hon'ble Supreme Court may not be interfered with the judgment and order passed by the Labour Court / High Court, the same came to be negatived by the Hon'ble Supreme Court and the Hon'ble Supreme Court restored the order of dismissal.
[6.4] Identical question came to be considered by this Court in the case of Gujarat State Road Transport Corporation vs. Khumarsinh Ramsinh Mahida reported in 2005(3) GLH 127 and in the similar set of facts and circumstances of the case and even considering the legality and validity of the order passed by the Labour Court exercising discretion under Section 11 A of the Industrial Disputes Act, 1947, this Court has held that the post of Conductor in the Corporation is that of trust and confidence where honesty and integrity are inbuilt requirements and therefore, in case of misconduct of misappropriation i.e. not issuing the tickets though the fare was collected, the Labour Court was not justified in substituting penalty imposed by the employer dismissing the employee which is the discretion of the employer. While holding so, this Court considered decisions of the Hon'ble Supreme Court in the case of Janta Bazar (South Kanra Central Cooperative Wholesale Stores Ltd) & others vs. Secretary, Sahakari Noukaraga Sangh and others reported in (2000)7 SCC 517 as well as in the case of Karnataka State Road Transport Corporation vs. B.S. Hullikatti reported in (2001) 2 SCC 574.
[6.5] Considering the aforesaid facts and circumstances of the case, no case is made out to interfere with the impugned judgment and order passed by the learned Appellate Court in allowing the appeal by quashing and setting aside the judgment and decree passed by the learned trial Court by which the learned trial Court declared the order of dismissal as null and void and declared that the plaintiff is continued in service.
[7.0] Under the circumstances, present Second Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed. In the facts and circumstances of the case, there shall be no order as to cost.
Sd/ (M.R.SHAH, J.) Ajay